Education in Black America: Is It the New Jim Crow? Ellen Marrus I. INTRODUCTION “Our children are our future.” How many times have you heard that saying? We often say it to encourage young people to think about their future responsibilities. Adults think about it as we remember how important children are to the well-being of our nation. This phrase has even been used in song: “[T]he children are our future. Teach them well and let them lead the way.”1 Every generation depends on its youth to build the future, to make sure society takes care of the elderly, and to provide a better overall environment and civilization for current and future generations. It is imperative that we endow all young people with the essential tools to accomplish these goals. A quality educational system that meets the needs of all children will provide them with the knowledge and skills necessary to be successful. However, we have long debated government’s role in education and the appropriate way to educate children.2 As of George Butler Research Professor of Law and Director of the Center for Children, Law & Policy, University of Houston Law Center. I thank University of Houston Law Center Dean Leonard Baynes and the National Bar Association for inviting me to present at the twenty-fifth anniversary Wiley A. Branton Issues Symposium held at St. John’s Law School on October 10, 2014. I also thank the University of Houston Law Foundation for its financial support. 1. WHITNEY HOUSTON, GREATEST LOVE OF ALL (Arista Records 1985). 2. United States Supreme Court cases from as early as the 1920s focused on education-related issues, including a parent’s right to educate his or her child as he or she sees fit, a state’s right to require compulsory education, and a child’s right to education. See, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925) (“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.”); Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (“[I]t is the natural duty of the parent to give his children education suitable to their station in life; and nearly all the States . enforce this obligation by compulsory laws.”). However, the Court did not address the education of African American youth until 1954. See Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 493 (1954) (“We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities 28 ARKANSAS LAW REVIEW [Vol. 68:27 late, there has been much discussion about the education system’s inability to provide children with the means to succeed in our modern, global society. Furthermore, many express concerns about the way we evaluate teachers and schools, and how we measure what students are learning. To date, much of this discussion has focused on children who live at home with their parents and attend schools in their community. The discourse often overlooks the children who face disciplinary action and removal from their “home” school. These students might receive instruction at home or move to an alternative school. Others might become involved in the juvenile justice system through delinquency or dependency proceedings,3 often removing them from their homes. Children placed in foster care or group homes might frequently move from placement to placement, causing their school to also change. The youth involved in the delinquency system might also receive their education in a juvenile detention center or, even worse, in an adult prison. The number of children who face these types of educational situations increases constantly, but society often ignores their needs. Children of color, particularly African American children, are disproportionately represented in all of these arrangements. Once removed from his or her home school and caught in the net of alternative education or the justice system, a child’s chances for a quality education decrease dramatically. Thus, for many children, the opportunities to receive the skills needed to become productive citizens are destroyed at an early age. Part II of this essay first discusses the disproportionate number of African American children involved in child welfare programs, school disciplinary proceedings, and the juvenile justice system.4 The connection between African American youth and the legal system contributes to the criminalization of and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.”). 3. Delinquency proceedings involve children accused of an act which would be considered a crime if committed by an adult. A dependency action is filed to protect a child from harm caused by the child’s caretaker, usually a parent. 4. In my initial drafts, I planned to discuss only children in the delinquency system. While I prepared my presentation for this symposium, I found it impossible not to discuss foster care and schools. A child’s educational disadvantages do not start when he or she enters the delinquency system—the educational disruptions occur at a much earlier age. As a society, we often talk about the school-to-prison pipeline, but we tend to ignore what happens to young children who enter the foster care system. 2015] EDUCATION IN BLACK AMERICA 29 black children. Furthermore, various educational interruptions in each system increase the likelihood of black children finding themselves in the adult criminal justice system. African American children are more likely to be placed in foster care, are more likely to face disciplinary action in public schools, and are more likely to be confined in either juvenile or adult detention facilities than their white peers. This creates major obstacles for children of color to become productive citizens in our society and limits the chance this generation of African American youth can reach their full potential. Part III of this essay describes how each of these systems interrupts the education of black youth in our public school system. Part III also analyzes the long-term effects of educational interruption on African American children. These problems include an inability of children to reenroll in their home school, a lack of coordination and collaboration between agencies, a shortage of coordinated efforts to address the needs of youth, a scarcity of appropriate school services, a high level of mobility among youth in the system, an absence of advocates for appropriate education for children, and a lack of access to educational records. Furthermore, a host of other problems related to post-placement transition arise for incarcerated youth, including a failure to earn high school credits, a lack of skills training, an inability to enroll in college programs, a difficulty with obtaining financial aid, and more. Part IV of this essay concentrates on developing solutions to the problems faced by minority youth in the foster care, school discipline, and delinquency systems. Educational reformers have implemented successful programs that both provide a quality education and help youth remain in school, regardless of grade level. Programs also exist to help students obtain a post-secondary degree and to stay out of the criminal justice system. Lastly, Part IV discusses the reform needed to provide all youth with a quality education and equal educational opportunities. II. THE DISPROPORTIONATE NUMBER OF YOUTH OF COLOR INVOLVED WITH THE LEGAL SYSTEM The terms “disproportionate minority representation” or “disproportionate minority contact” usually refer to the overrepresentation of people of color in the criminal justice 30 ARKANSAS LAW REVIEW [Vol. 68:27 system. However, minority youth are also overrepresented in the child foster care system and in disciplinary proceedings in our nation’s public schools. Before we can understand the educational disruptions experienced by African American youth entangled in the legal system, we must first discuss the disproportionate number of black children represented in the child welfare and school discipline systems. Although the educational disruptions that often occur in foster care, schools, and the juvenile justice system are damaging to any child, the disproportionate number of minorities, particularly African Americans, in each system creates a disparate impact on youth of color. A. Child Welfare System In the child welfare system, children are removed from parental care following some type of physical, emotional, or sexual abuse, or after a parent fails to protect the child from harm caused by someone else.5 African American children are more likely to be removed from their parents’ care, are disproportionately placed in foster care and group homes, and are kept in these placements for longer periods of time than their white peers.6 In 2004, black children comprised 34% of the children in foster care, even though the child population in the United States was only 15% African American.7 As children continue through the child welfare system, the disproportionate number of African American children in foster care grows.8 Furthermore, black children placed in foster care will remain there almost nine months longer than white children.9 Scholars continue to debate why such a high number of African American children are initially removed from their 5. See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-07-816, AFRICAN AMERICAN CHILDREN IN FOSTER CARE: ADDITIONAL HHS ASSISTANCE NEEDED TO HELP STATES REDUCE THE PROPORTION IN CARE 1 (2007), available at www.gao.gov/assets/270/ 263615.pdf. 6. Id. 7. Id. at 8. 8. See id. at 7-8. After the initial removal of a child from his or her home, there are several times during which the child may be returned to his or her parents’ care, be placed with a relative, or be adopted.